Excerpt:.....plea of limitation set up in defence to the alternative claim has to fail. as regards the plaintiffs' claim for lands, the defendants shall place each of the plaintiffs in possession of two acres of well-irrigated and five acres of rainfed lands from out of the lands owned by their father rangaswami naicker at the time of his death and described in the schedule to the plaint. the plaintiffs shall be entitled to mesne profits from the lands from 6th april, 1959. as both the appeals succeed in part and fail in part, the parties will bear the respective costs in the appeals......file of the subordinate judge's court, ramanathapuram, at madurai, and relate to the estate of one rangaswami naicker who died on 28th march, 1927. the three plaintiffs in the suit are his only children, all daughters, and the first: defendant is his divided nephew. the other defendants to the suit are sons of the first defendant. rangaswami naicker's brother thirupathy naicker had died leaving the first defendant and another son who died subsequently both minors. the partition between rangaswami naicker and the first defendant was in september, 1921, during the minority of the first defendant amicably brought about and fair in all respects. the evidence shows that despite the partition, the uncle and nephew were living together with affection towards each other. rangaswami naicker had.....

Judgment:

Natesan, J.

1. These two appeals arise out of the suit, Original Suit No. 20 of 1959, on the file of the Subordinate Judge's Court, Ramanathapuram, at Madurai, and relate to the estate of one Rangaswami Naicker who died on 28th March, 1927. The three plaintiffs in the suit are his only children, all daughters, and the first: defendant is his divided nephew. The other defendants to the suit are sons of the first defendant. Rangaswami Naicker's brother Thirupathy Naicker had died leaving the first defendant and another son who died subsequently both minors. The partition between Rangaswami Naicker and the first defendant was in September, 1921, during the minority of the first defendant amicably brought about and fair in all respects. The evidence shows that despite the partition, the uncle and nephew were living together with affection towards each other. Rangaswami Naicker had taken three wives in the hope of having a male issuer but each wife had only a female child, the three plaintiffs in the suit. At the time of his death, the first plaintiff was about five years old, the second plaintiff about six years old, and the third plaintiff just 11/2 years old. All the wives were dead and the first defendant himself was then about 21 years old. The evidence is that the step-mother of the first defendant was looking after the family of Rangaswami Naicker and was also bringing up these motherless children. The principal contest in the case is about the genuineness of a will stated to have been left by the deceased Rangaswami Naicker. It was executed by him on the very day he died, that is on 28th March, 1927, and under it the first defendant took possession and control of the estate of Rangaswami Naicker on his death. The suit impugning the will and claiming against the first defendant possession of the properties of Rangaswami Naicker and an account of the management of the properties and realisation of the assets has been instituted only on 6th April, 1959. Even the youngest of the three plaintiffs, the third plaintiff had become major in 1944 itself. The plaint sets out a family arrangement, sometime after 1932, consequential on the attack of the will as forgery whereby it is stated it was agreed that the first defendant should' manage the properties of the deceased Rangaswami Naicker, collect the outstandings due to the estate, augment the income, account for the same and hand over possession of the properties and monies to the plaintiffs whenever demanded giving up his rights under the will set up by him.

2. Under the will Exhibit B-1 which vested all the properties of Rangaswami Naicker in the first defendant, certain obligations were imposed on him for the benefit of the three plaintiffs. At the time of his death the testator was possessed of about 42 acres of land and about Rs. 27,000 in outstandings. The will provides inter alia (a) that the first defendant should bring up at his expense the three plaintiffs till they attain majority/ (b) that he shall get them married meeting the marriage expenses; (c) that each of the plaintiffs should be given Rs. 1,000 worth of jewels, two acres of well-irrigated lands and five acres of rain-fed lands and also a sum of Rs. 6,000 on their becoming majors; and (d) that a sum of Rs. 4,000 shall be spent on three charities, besides an endowment for the construction of a Vinayagar temple. The learned Subordinate Judge, on an analysis of the documentary evidence in the case and probabilities upheld the genuineness and truth of the will and found against the family arrangement put forward by the plaintiffs. He took up for consideration the alternative claim of the plaintiffs of seven acres of land for each of the plaintiffs and the cash of Rs. 6,000 for each of them. He found that the claim-in respect of the lands had been satisfied by an arrangement which the first defendant put forward. He rejected the satisfaction pleaded by the first defendant in respect of the money claims of the plaintiffs and decreed a sum of Rs. 6,000 to-each of the plaintiffs with interest at 51/2 per cent, per annum from the dates of the plaintiffs attaining majority. The first defendant has preferred Appeal Suit No. 214 of 1961 to the extent of the decree against him and the plaintiffs have preferred Appeal Suit No. 462 of 1961 to the extent they have lost.

3. To take up for consideration the question of the genuineness of the will, We may immediately state that there cannot be the slightest doubt about the same. The first defendant has asserted rights under the will immediately after the death of the testator and had made the will public within a few days of the death when it became necessary to assert his rights under the will. To start with, viewed in the background of the traditions, habits of life, thought and inclinations of the class of people to which the testator belonged, particularly at that period, with their robust outlook on life, there is nothing unnatural or unusual in the terms of the will.

[After discussing the facts of the case their Lordships proceeded to observe:]

4. In these circumstances, we see no reason to differ from the conclusion of the learned Subordinate Judge that the will Exhibit B-1, is a true, genuine and valid document which confers on the first defendant absolute title to the properties of the deceased subject to the provisions contained therein in favour of the plaintiffs and the trust.

5. We shall next take up for consideration the plea of family arrangement. The story of this family arrangement is set up for the first time in the notice Exhibit A-9, dated 18th February, 1959 which preceded the suit. The plaint is dated 4th April, 1959. The notice does not give the date of the arrangement. It is stated that it was brought about sometime after 1932. The reason for the family arrangement is stated to be the solicitude of the relations for the first defendant and to avoid the consequences that may follow a finding that the will was a forgery, ante-dated and fabricated by the first defendant. Under the arrangement the first defendant as the paternal uncle's son of the minors living in the same house should manage the properties of the plaintiffs, collect the outstandings due to their father, augment the income and account for the income and management and hand over to the plaintiffs when demanded possession of the properties and moneys thus taken charge of and augmented with full vouchers and accounts.

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Having considered the entire evidence on this question and the probabilities, we have no hesitation in agreeing with the trial Court that the family arrangement is nothing but a myth to explain the long possession of the properties by the first defendant and the inordinate delay on the part of the plaintiffs in instituting the suit.

6. Next we shall take up for consideration the alternative claims of the plaintiffs in respect of the obligations that have been cast on the first defendant under the will-cash and lands as stridhanam.

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The learned Subordinate Judge in these circumstances held that Exhibits B-74 and B-75 are fabrications and that the discharge pleaded is not true. No case has been made before us for differing from this conclusion.

7. The next question for consideration is whether the plaintiffs have been given by the first defendant lands as provided for in the will. The will provides that each of the daughters should be given two acres of well-irrigated lands and five acres of rain-fed lands as stridhana. The first defendant pleads that he has discharged this obligation also by giving for the plaintiff's use the land of an extent of thirty acres belonging to P.W. 3 which he purchased in Court auction.

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In the circumstances we are unable to agree with the learned Subordinate Judge that the plaintiffs were given their share of the lands as directed under the will, Exhibit B-1.

8. The question however arises whether the claims of the plaintiffs in the alternative for the lands and the sum of Rs. 18,000 are in time. The testator died on 28th March, 1927. The first plaintiff became major in February, 1939, the second plaintiff in 1938 and the third plaintiff in August, 1944. It is contended for the defendants that under the will the lands and cash of Rs. 6,000 to each of the plaintiffs had to be given as and when the plaintiffs attained majority, and that in the circumstances the claims are clearly barred. Learned Counsel contends that the proper article of limitation applicable is Article 123 of the Limitation Act of 1908. Under the said article a suit for legacy or for a share of residue bequeathed by a testator has to be instituted within 12 years after the legacy share becomes payable or deliverable. In the present case even the youngest of the daughters, the third plaintiff, had become major in August, 1944. For the plaintiff it was contended that the specific provision of the Limitation Act applicable is Section 10 and not Article 123. The learned Subordinate Judge has accepted this contention and in our view, properly. No doubt for the application of Section 10 the property must be vested in the first defendant as an express trustee. But once it is found that the person in possession fills the requirement, no period of limitation avails him. From a reading of the will Exhibit B-1 it is manifest that the first defendant is made an express trustee in respect of the obligations imposed under the will. The benefits conferred on the daughters by the will are not legacies simpliciter. All the properties of the testator are Vested in the first defendant absolutely in ownership and certain obligations are imposed on him in relation to that ownership. - He is enjoined by the will to get the daughter married, take care of them as guardian, give each of them a sum of Rs. 1,000 for jewels and also give each of them two acres of well-fed lands and 5 acres of rainfed lands, besides cash of Rs. 6,000 to each of them as stridhanam on their becoming majors. Clearly the properties of the testator are vested in the first defendant for certain specific purposes the essential elements required to attract Section 10 of the Limitation Act. A person is an express trustee when he is entrusted by the owner with the properties for the discharge of particular obligations. This is not a case where the properties of the testator which have to go to the plaintiffs are vested in the first defendant merely by virtue of his office. The properties are vested in him in ownership subject to certain obligations. In the present case the properties are bequeathed to the first defendant upon trust to hand over some of the properties to the daughters of the testator at the appropriate time. In Williams on Executors and Administrators, Fourteenth Edition, Volume II, at page 774, it is stated:

If there is a specific bequest to the executor himself on trust, and he assents to it, the thing bequeathed thereupon ceases to be part of the testator's assets, and the executor becomes a trustee of it for those who are beneficially interested. He is thereupon precluded from dealing with it or making title as executor.

In Vairdvan Chetty v. Chettichi Achi : AIR1936Mad876 , where by a family arrangement a certain hundi was vested in the defendant for payment of debts of plaintiff's husband and any balance that might remain after payment of his creditors was to be paid to the latter, it was held that the arrangement constituted a trust for specific purposes within the meaning of Section 10, and that the plaintiff's husband was entitled to call upon the defendant to account for the proceeds of the hundi. Varadachariar, J., observed in the course of the judgment:

In the view that the payment to Vellayappa himself (plaintiff's husband) of any balance that might remain after payment of his creditors was part of the arrangement under which the hundi was issued to the defendant, there can be little difficulty in holding that Section 10 in Limitation Act covers the present suit. The Section requires that the property should have become Vested in the defendant in trust for a specific purpose. As the trust in the present case relates to money, the issue of the hundi in favour of the defendant was sufficient to vest the amount in him, and there is no doubt that a trust for the payment of the debts of Vellayappa and of the balance to Vellayappa himself will constitute a trust for a 'specific purpose'.

Reference may also be made to Nachimuthu v. Muthuswamy : AIR1934Mad273 . That is a case of settlement whereby the defendant's grandfather settled family properties worth about Rs. 15,000 upon his son and directed the son to pay to each of his three unmarried daughters of Rs. 500 in the shape of moveable properties on their attaining majority. The suit by the daughters claiming the sum of Rs. 500 Was held not affected by any period of limitation; the son was held to be the trustee and the daughters, beneficiaries. Narayanamurthy v. Gangaraju (1958) 2 An.W.R. 312 : A.I.R. 1958 A.P. 451, comes closer, as the trust in that case was created under a will. One Gangadaram deposited with his eldest son, the first defendant in the suit, a sum of Rs. 9,900 for investment and in relation to this fund he executed a will by and under which the first defendant was directed to pay interest accruing on the amount to his wife. After her death the money was to be taken by the first defendant and his brothers. A dispute arose as to the arrears of interest accrued and undisguised before the death of the testator's wife. A claim for the said amount was made by the stridhana heirs of the wife. Referring to Section 10 in answer to the plea of limitation it is observed by Chandra Reddy, J. (as he then was):

Undeniably, Gangadharam entrusted the sum of Rs. 9,900 for the specific purpose of investment, the interest accruing whereon was to be paid to his wife. For that reason the money can be said to have become vested in the first defendant in trust for the express purpose of payment of the accruing interest to his mother.

9. In our view, the plea of limitation set up in defence to the alternative claim has to fail.

10. We shall now consider what reliefs the plaintiffs are entitled to. The trial Court has awarded interest on the sum of Rs. 6,000 from the dates on which the respective plaintiffs attained majority. In our view, in the circumstances of the case, the plaintiffs will not be entitled to interest for any period prior to the date of the plaint. Even in the notice, dated 18th February, 1959, which preceded the suit, the alternative claim for the moneys and lands was not made. It is the plaintiff's own case that the parties have all been living together and disputes arose only shortly before the suit. No doubt the first defendant would deny that the plaintiffs were all living with him jointly. One thing is clear from the evidence that even P.W. 3 the first plaintiff's husband, had been writing for a long time the accounts of the first defendant. Very likely a reason for the absence of demand may be that the parties have been getting on amicably together having the benefit of common management whether there Was common living or not. There is evidence on record showing complete amity between the parties after the early skirmishes by the guardians and that the plaintiffs have been looking upon the first defendant as a brother and have been so referring to him. To sustain the claims and counter claims that have been set up in the suit, the true relationships of the parties have obviously been suppressed. In our view, interests of justice would be served sufficiently if the plaintiffs are awarded interest on the three sums of Rs. 6,000 from 6th April, 1959, the date of the institution of the suit. The decree of the trial Court in this regard will be modified to this extent. As regards the plaintiffs' claim for lands, the defendants shall place each of the plaintiffs in possession of two acres of well-irrigated and five acres of rainfed lands from out of the lands owned by their father Rangaswami Naicker at the time of his death and described in the schedule to the plaint. If the parties are not agreed as to the particular lands which each of the plaintiffs has to take, the matter shall be determined in execution proceedings. The plaintiffs shall be entitled to mesne profits from the lands from 6th April, 1959. As both the appeals succeed in part and fail in part, the parties will bear the respective costs in the appeals. As regards costs in the trial Court, the parties will give and take proportionate costs.